Appeal No. 94-2504
Application 07/963,676
their claims were rejected in the Examiner's Answer without a
new ground of rejection being made. Appellants filed an
extensive Reply Brief in response to the new rationale and a
proposed amendment. The Reply Brief was entered without a
substantive comment by the examiner, leaving the record barren
as to reasons why appellants' arguments were not persuasive to
the examiner. The amendment was not entered, yet, appellants
were not notified of that action by the examiner.
Taking a step back and reviewing the examination
procedure followed in this application, it is questionable
whether the administrative due process requirements of 35
U.S.C. § 132 were followed. Appellants should not have to
file an appeal brief in order for the examiner to explain for
the first time the substance of a rejection. However, having
that unhappy set of circumstances occur here, appellants were
entitled to a substantive response from the examiner to the
extensive arguments set forth in the Reply Brief instead of
the terse notification that the paper had been "entered and
considered but no further response by the Examiner is deemed
necessary." At the least, appellants should have been
accorded the courtesy of a written notification that the
amendment filed with the Reply Brief was not entered.
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